[Federal Register Volume 88, Number 243 (Wednesday, December 20, 2023)]
[Rules and Regulations]
[Pages 87937-87959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27843]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 231213-0302]
RIN 0648-BK57


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to the U.S. Coast Guard's Alaska Facility Maintenance and 
Repair Activities

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule; notification of issuance of Letter of 
Authorization.

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SUMMARY: NMFS, upon request from the United States Coast Guard (Coast 
Guard), hereby issues regulations to govern the unintentional taking of 
marine mammals incidental to maintenance and repair at facilities in 
Alaska, over the course of 5 years (2023-2028). These regulations, 
which allow for the issuance of a Letter of Authorization (LOA) for the 
incidental take of marine mammals during the described activities and 
specified timeframes, prescribe the permissible methods of taking and 
other means of effecting the least practicable adverse impact on marine 
mammal species or stocks and their habitat, as well as requirements 
pertaining to the monitoring and reporting of such taking.

DATES: Effective from March 1, 2024, through February 28, 2029.

ADDRESSES: A copy of the Coast Guard's application and any supporting 
documents, as well as a list of the references cited in this document, 
may be obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-coast-guards-alaska-facility-maintenance-and-repair. In case of problems accessing these documents, 
please call the contact listed below.

FOR FURTHER INFORMATION CONTACT: Cara Hotchkin, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

    We received an application from the Coast Guard requesting 5-year 
regulations and authorization to take multiple species of marine 
mammals. This rule establishes a framework under the authority of the 
MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take of 
marine mammals incidental to the Coast Guard's construction activities 
related to maintenance and repair at facilities in Alaska.

Legal Authority for the Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region for up to 5 years if, 
after notice and public comment, the agency makes certain findings and 
issues regulations that set forth permissible methods of taking 
pursuant to that activity and other means of effecting the ``least 
practicable adverse impact'' on the affected species or stocks and 
their habitat (see the discussion below in the Mitigation section), as 
well as monitoring and reporting requirements. Section 101(a)(5)(A) of 
the MMPA and the implementing regulations at 50 CFR part 216, subpart I 
provide the legal basis for issuing this final rule containing 5-year 
regulations, and for any subsequent Letters of Authorization (LOAs). As 
directed by this legal authority, this final rule contains mitigation, 
monitoring, and reporting requirements.

Summary of Major Provisions Within the Regulations

    Following is a summary of the major provisions of this rule 
regarding Coast Guard construction activities. These measures include:
    <bullet> Required monitoring of the construction areas to detect 
the presence of marine mammals before beginning construction 
activities;
    <bullet> Shutdown of construction activities under certain 
circumstances to avoid injury of marine mammals; and
    <bullet> Soft start for impact pile driving to allow marine mammals 
the opportunity to leave the area prior to beginning impact pile 
driving at full power.

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to as ``mitigation''); 
and requirements pertaining to the mitigation, monitoring, and 
reporting of the takings are set forth. The definitions of all 
applicable MMPA statutory terms cited above are included in the 
relevant sections below.

Summary of Request

    On March 15, 2021, NMFS received an application from the Coast 
Guard requesting authorization for take of marine mammals incidental to 
construction activities related to maintenance and repair at eight 
Coast Guard facilities in Alaska. On November 24, 2021 (86 FR 67023), 
we published a notice of receipt of the Coast Guard's application in 
the Federal Register, requesting comments and information related to 
the request for 30 days. We received no public comments. Following 
additional review, we determined the application was adequate and 
complete on January 19, 2022. On August 12, 2022, the Coast Guard 
submitted a modification to their application (to include vibratory 
driving of composite piles as part of the specified activity). This 
revised application was deemed adequate and complete on August 31, 
2022. On April 28, 2023, we published the proposed rule in the Federal 
Register (88 FR 26432), incorporating the changes submitted by the 
Coast Guard in August 2022, and requested comments and

[[Page 87938]]

information from the public. We received no public comments. The 
regulations in this final rule are valid for 5 years after the initial 
effective date, and allow for authorization of take of 12 species of 
marine mammals by Level A and Level B harassment incidental to 
construction activities related to facility maintenance and repair at 8 
sites in Alaska. Neither the Coast Guard nor NMFS expect serious injury 
or mortality to result from this activity.

Description of the Specified Activity

    The Coast Guard plans to conduct construction necessary for 
maintenance and repair of existing in-water structures at the following 
eight Coast Guard station facilities in Alaska: Kodiak, Sitka, 
Ketchikan, Valdez, Cordova, Juneau, Petersburg, and Seward. These 
repairs will include installation and removal of steel, concrete, and 
timber piles, involving use of impact and vibratory hammers and Down-
The-Hole drilling (DTH) equipment, and removal of piles by cutting, 
clipping, or vibratory extraction. Maintenance activities may also 
include underwater power washing. Up to 245 piles will be removed and 
replaced on a 1-to-1 basis (i.e., total pile numbers at these 
facilities are expected to remain the same) over the 5-year period of 
effectiveness for the regulations. Hereafter (unless otherwise 
specified or detailed) we use the term ``pile driving'' to refer to 
both pile installation and pile removal. The use of vibratory, DTH, and 
impact pile driving equipment is expected to produce underwater sound 
at levels that have the potential to result in harassment of marine 
mammals.
    A more detailed description of the planned construction project is 
provided in the proposed rule (88 FR 26432, April 28, 2023). Since that 
time, no changes have been made to the planned activities. Therefore, a 
detailed description is not provided here. Please refer to the proposed 
rule (88 FR 26432, April 28, 2023) for the detailed description of the 
specific planned activities at each facility.

Comments and Responses

    The proposed rule to authorize take of marine mammals incidental to 
construction activities related to maintenance and repair at eight 
Coast Guard facilities in Alaska (88 FR 26432; April 28, 2023) provided 
detailed descriptions of Coast Guard's activities, the marine mammal 
species that may be affected by the activities, and the anticipated 
effects on marine mammals, and requested public input on the Coast 
Guard's request for authorization, our analyses, the proposed 
authorization, and any other aspect of the proposed authorization. The 
proposed rule requested that interested persons submit relevant 
information, suggestions, and comments in a 30-day public comment 
period. NMFS received no substantive public comments on the proposed 
rule.

Changes From the Proposed Rule

    Since the proposed rule was published (88 FR 26432, April 28, 
2023), NMFS published the final 2022 Alaska and Pacific Stock 
Assessment Reports (SAR), available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region, which describe revised stock structures under the MMPA 
for humpback whales and southeast Alaska harbor porpoise (Carretta et 
al., 2023; Young et al., 2023). In the proposed rule, we explained 
that, although we typically consider updated peer-reviewed data 
provided in draft SARs to be the best available science, and use the 
information accordingly, proposed revisions to stock structures are 
excepted due to potential changes based on public comments, and it is 
more appropriate to use the status quo stock structures until the new 
stock structures are finalized. Therefore, upon finalization of these 
revised stock structures in the final SARs, we have made appropriate 
updates in this final rule. This includes updates in the description of 
the potentially affected stocks (see the Description of Marine Mammals 
in the Area of the Specified Activity section, including table 1), the 
attribution of take numbers to stock (see the Estimated Take section), 
and the analyses to ensure the necessary determinations are made for 
the new stocks (see the Negligible Impact Analysis and Determination 
and Small Numbers sections).
    In table 1, we updated the stock information to reflect the 
finalized humpback whale and harbor porpoise stock structures. For 
humpback whale, the Central and Western North Pacific Stocks have been 
replaced by the Hawai[revaps]i and Mexico-North Pacific stocks; for 
harbor porpoise, the Southeast Alaska stock has been split into the 
Northern Southeast Alaska Inland Waters, Southern Southeast Alaska 
Inland Waters, and Yakutat/Southeast Alaska Offshore Waters stocks. New 
stocks have been updated to include associated ESA/MMPA status, stock 
abundance data, PBR, and Annual Mortality and Serious Injury data. 
Updates to stock names have also been carried through in tables 9 
through 16, as relevant, and stock ranges have been noted in footnotes 
on table 13.
    NMFS has also made a few minor corrections in this final rule. In 
Table 7 of the Estimated Take section of the proposed rule, the correct 
reference for the sound source level for impact installation of 24-inch 
concrete piles is ``Washington State Department of Transportation 
(WSDOT) (2007)'', not ``WSDOT (2020)''; the correct reference has been 
included in Table 4 in this final rule. In the regulatory text of this 
final rule, text relating to Protected Species Observer (PSO) 
qualifications (Sec.  217.195 (b)) has been subdivided into Sec.  
217.195(b)(1) to Sec.  217.195(b)(5) for clarity. Additionally, the 
following text was added to Sec.  217.195(e)(1)(ii)(B) ``When possible, 
the number of strikes for each pile/hole (impact driving, DTH); and, 
for DTH, the duration of operation for both impulsive and non-impulsive 
components as well as the strike rate must be included'' for 
consistency with current guidelines on hydroacoustic data collection.
    This final rule also corrects addition errors in two tables in the 
proposed rule: table 15 (Level B Harassment Take in Each of the Five 
Years and in Total) and table 19 (Proposed Level A and Level B 
Harassment Take and Percent of Stock for the Highest Annual Estimated 
Takes of the Project). In table 15, the total estimated take for minke 
whale should have been 26, rather than 25. In table 19 (which is Table 
16 in this final rule), the total number of takes from the ``harbor 
porpoise--Gulf of Alaska'' stock should have summed to 200 rather than 
245.
    This final rule also includes corrections to several typographical 
errors in the proposed rule at table 16 (Proposed Level B Harassment 
Take for Each Facility), which is table 13 in this final rule. Footnote 
indicators from the application were accidentally included in the take 
numbers for killer whales and Pacific white-sided dolphins at Cordova 
and Seward, and for Northern fur seals at Seward. Also, in table 16 of 
the proposed rule, the values for killer whale were incorrectly 
ordered. While the order of the column headers was ``Kodiak; Sitka; 
Ketchikan; Seward; Valdez; Cordova; Juneau; Petersburg'', the order of 
the take estimates presented for killer whales was ``Kodiak; Sitka; 
Ketchikan; Valdez; Cordova; Juneau; Petersburg; Seward'', resulting in 
errors for Seward, Valdez, Cordova, Juneau, and Petersburg. These 
errors impacted the site-specific take calculations and total estimates 
of take by Level B harassment for these species. The correct take 
estimates have been carried through and are shown in tables 12, 13,

[[Page 87939]]

and 16 of this final rule. All corrections to proposed rule Table 16 
resulted in a lower amount of take by Level B harassment than that 
shown in the proposed rule. Total take by Level B Harassment over the 
course of the 5-year authorization changed as follows:
    <bullet> Killer whales: proposed: 797; final: 543;
    <bullet> Pacific white-sided dolphin: proposed: 1,379; final: 
1,105; and
    <bullet> Northern fur seal: proposed: 181; final: 71.

Description of Marine Mammals in the Area of the Specified Activity

    We have reviewed the Coast Guard's LOA application, including the 
species descriptions that summarize available information regarding 
status and trends, distribution and habitat preferences, behavior and 
life history, and auditory capabilities of the potentially affected 
species, for accuracy and completeness and refer the reader to Sections 
3 and 4 of the application, instead of reprinting all of the 
information here. Additional information regarding population trends 
and threats may be found in NMFS' SARs (www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS' website 
(www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is expected and 
authorized for this action and summarizes information related to the 
population or stock, including regulatory status under the MMPA and the 
Endangered Species Act (ESA) and potential biological removal (PBR), 
where known. PBR, defined by the MMPA as the maximum number of animals, 
not including natural mortalities, that may be removed from a marine 
mammal stock while allowing that stock to reach or maintain its optimum 
sustainable population, is considered in concert with known sources of 
ongoing anthropogenic mortality (as described in NMFS' SARs). While no 
mortality is anticipated or authorized here, PBR and annual serious 
injury and mortality from anthropogenic sources are included here as 
gross indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in the specified geographical 
regions are assessed in either NMFS' U.S. Alaska SARs or U.S. Pacific 
SARs. All values presented in table 1 are the most recent available at 
the time of writing, including in the final 2022 SARs, and are 
available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock.

                                              Table 1--Species Likely Impacted by the Specified Activities
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                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:
    Gray whale......................  Eschrichtius robustus..  Eastern North Pacific..  -, -, N             26,960 (0.05, 25,849,         801        131
                                                                                                             2016).
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Hawai[revaps]i.........  -, -, N             11,278 (0.56, 7,265,          127      27.09
                                                               Mexico--North Pacific..  T, D, Y              2020).                       UND       0.57
                                                                                                            918 (0.217, UNK, 2006)
    Fin whale.......................  Balaenoptera physalus..  Northeast Pacific......  E, D, Y             UND (UND, UND, 2013)..        UND        0.6
    Minke whale.....................  Balaenoptera             Alaska.................  -, -, N             N/A (N/A, N/A, N/A)           UND          0
                                       acutorostrata.                                                        \4\.
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
    Killer whale....................  Orcinus orca...........  Eastern North Pacific    -, -, N             1,920 (N/A, 1,920,             19        1.3
                                                                Alaska Resident.                             2009).
                                                               Eastern North Pacific    -, -, N             587 (N/A, 587, 2012)..        5.9        0.8
                                                                Gulf of Alaska,
                                                                Aleutian Islands,
                                                                Bearing Sea Transient.
                                                               Eastern North Pacific    -, -, N             302 (N/A, 302, 2018)..        2.2        0.2
                                                                Northern Resident.
                                                               AT1 Transient..........  -, D, Y             7 (N/A, 7, 2019)......        0.1          0
                                                               West Coast Transient...  -, -, N             349 (N/A, 349, 2018)..        3.5        0.4
    Pacific white-sided dolphin.....  Lagenorhynchus           North Pacific..........  -, -, N             26,880 (UND, UND,             UND          0
                                       obliquidens.                                                          1990).
Family Phocoenidae (porpoises):
    Dall's porpoise \5\.............  Phocoenoides dalli.....  Alaska.................  -, -, N             UND (UND, UND, 2015)..        UND         37
    Harbor porpoise.................  Phocoena phocoena......  Northern Southeast       -, -, Y             1,619 (0.26, 1,250,            13        5.6
                                                                Alaska Inland Waters.                        2019).
                                                               Southern Southeast       -, -, Y             890 (0.37, 610, 2019).        6.1        7.4
                                                                Alaska Inland Waters.
                                                               Yakutat/Southeast        -, -, N             UND (UND, UND, N/A)...        UND       22.2
                                                                Alaska Offshore Waters.
                                                               Gulf of Alaska.........  -, -, Y             31,046 (0.21, N/A,            UND         72
                                                                                                             1998).
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
 sea lions):
    California sea lion.............  Zalophus californianus.  U.S....................  -, -, N             257,606 (N/A, 233,515,     14,011       >321
                                                                                                             2014).
    Northern fur seal...............  Callorhinus ursinus....  Eastern Pacific........  -, D, Y             626,618 (0.2, 530,376,     11,403        373
                                                                                                             2019).

[[Page 87940]]

 
    Steller sea lion................  Eumetopias jubatus.....  Eastern................  -,-, N              43,201 (N/A, 43,201,        2,592        112
                                                               Western................  E, D, Y              2017).                       318        254
                                                                                                            52,932 (N/A, 52,932,
                                                                                                             2019).
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina.........  Prince William Sound...  -, -, N             44,756 (N/A, 41,776,        1,253        413
                                                                                                             2015).
                                                               Lynn Canal/Stephens      -, -, N             13,388 (N/A, 11,867,          214         50
                                                                Passage.                                     2016).
                                                               Sitka/Chatham Straight.  -, -, N             13,289 (N/A, 11,883,          356         77
                                                                                                             2015).
                                                               Clarence Strait........  -, -, N             27,659 (N/A, 24,854,          746         40
                                                                                                             2015).
                                                               South Kodiak...........  -, -, N             26,448 (N/A, 22,351,          939        127
                                                                                                             2017).
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\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments/ assessments/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable (N/A). UND
  indicates data unavailable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury (M/SI) from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ No population estimates have been made for the number of minke whales in the entire North Pacific. Some information is available on the numbers of
  minke whales in some areas of Alaska, but in the 2009, 2013, and 2015 offshore surveys, so few minke whales were seen during the surveys that a
  population estimate for the species in this area could not be determined (Rone et al., 2017). Therefore, this information is N/A (not available).
\5\ Previous abundance estimates covering the entire stock's range are no longer considered reliable and the current estimates presented in the SARs and
  reported here only cover a portion of the stock's range. Therefore, the calculated Nmin and PBR is based on the 2015 survey of only a small portion of
  the stock's range. PBR is considered to be biased low since it is based on the whole stock whereas the estimate of mortality and serious injury is for
  the entire stock's range.

    A detailed description of the species likely to be affected by the 
Coast Guard's programmatic maintenance project, including brief 
introductions to the species and relevant stocks, as well as available 
information regarding population trends and threats, and information 
regarding local occurrence, were provided in the proposed rule (88 FR 
26432, April 28, 2023). With the exception of humpback whale and harbor 
porpoise, NMFS is not aware of any changes in the status of these 
species and stocks; therefore, detailed descriptions are not provided 
here. Please refer to the proposed rule (88 FR 26432, April 28, 2023) 
for these descriptions. Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.
    The 2022 Alaska and Pacific SARs described a revised stock 
structure for humpback whales which modifies the previous stocks 
designated under the MMPA to align more closely with the ESA-designated 
DPSs (Caretta et al., 2023; Young et al., 2023). Specifically, the 
three previous North Pacific humpback whale stocks (Central and Western 
North Pacific stocks and a CA/OR/WA stock) were replaced by five 
stocks, largely corresponding with the ESA-designated DPSs. These 
include Western North Pacific and Hawai'i stocks and a Central America/
Southern Mexico-CA/OR/WA stock (which corresponds with the Central 
America DPS). The remaining two stocks, corresponding with the Mexico 
DPS, are the Mainland Mexico-CA/OR/WA and Mexico-North Pacific stocks 
(Caretta et al., 2023; Young et al., 2023). The former stock is 
expected to occur along the west coast from California to southern 
British Columbia, while the latter stock may occur across the Pacific, 
from northern British Columbia through the Gulf of Alaska and Aleutian 
Islands/Bering Sea region to Russia.
    In the proposed rule, NMFS stated that the Central North Pacific 
stock of humpback whale was likely to be impacted by USCG's activities. 
Given the final revised stock structure, NMFS has reanalyzed the 
potential for take of each stock of humpback whale and determined that 
the Hawai'i stock and the Mexico-North Pacific stock are likely to be 
impacted by USCG's activities.
    The 2022 Alaska SARs described a revised stock structure for 
southeast Alaska harbor porpoise, which were split from one stock into 
three: the Northern Southeast Alaska Inland Waters, Southern Southeast 
Alaska Inland Waters, and Yakutat/Southeast Alaska Offshore Waters 
harbor porpoise stocks (Young et al., 2023). This update better aligns 
harbor porpoise stock structure with genetics, trends in abundance, and 
information regarding discontinuous distribution trends (Young et al., 
2023). Harbor porpoises found near Sitka are assumed to be members of 
the Yakutat/Southeast Alaska Offshore Waters stock. Harbor porpoises 
found near Juneau are assumed to be members of the Northern Southeast 
Alaska Inland Waters stock, while those found near Ketchikan are 
assumed to be members of the Southern Southeast Alaska Inland Waters 
stock, based on the geographical range of the stocks. The dividing line 
between the Northern and Southern Southeast Alaska Inland Waters Stocks 
is very close to Petersburg; therefore harbor porpoises at this 
location are assumed to be from both stocks in equal proportions. 
Please refer to the proposed rule (88 FR 26432, April 28, 2023) for 
species descriptions. Please also refer to the NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts, 
and to the SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) for more information about 
the changes to humpback whale and harbor porpoise stock structures.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available

[[Page 87941]]

behavioral response data, audiograms derived using auditory evoked 
potential techniques, anatomical modeling, and other data. Note that no 
direct measurements of hearing ability have been successfully completed 
for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS 
(2016) described generalized hearing ranges for these marine mammal 
hearing groups. Generalized hearing ranges were chosen based on the 
approximately 65-decibel (dB) threshold from the normalized composite 
audiograms, with an exception for lower limits for low-frequency 
cetaceans where the result was deemed to be biologically implausible 
and the lower bound from Southall et al. (2007) retained. Marine mammal 
hearing groups and their associated hearing ranges are provided in 
table 2.

                  Table 2--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013). This division between phocid and otariid pinnipeds is now 
reflected in the updated hearing groups proposed in Southall et al. 
(2019).
    For more detail concerning these groups and associated generalized 
hearing ranges, please see the Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS, 2018; 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance) for a review of available 
information.

Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take section, and the Mitigation section, to draw conclusions 
regarding the likely impacts of these activities on the reproductive 
success or survivorship of individuals and how those impacts on 
individuals are likely to impact marine mammal species or stocks.
    The effects of underwater noise from Coast Guard's construction 
activities have the potential to result in behavioral harassment of 
marine mammals in the vicinity of the survey area. The proposed rule 
(88 FR 26432, April 28, 2023) included a discussion of the effects of 
anthropogenic noise on marine mammals and the potential effects of 
underwater noise from pile installation and extraction on marine 
mammals and their habitat. That information and analysis is not 
repeated here; please refer to the proposed rule (88 FR 26432, April 
28, 2023).

Estimated Take

    This section provides an estimate of the number of incidental takes 
for authorization, which will inform both NMFS' consideration of 
``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as: any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would be by Level A or Level B harassment only, in 
the form of disruption of behavioral patterns for individual marine 
mammals resulting from exposure to the acoustic sources. Based on the 
nature of the activity, no serious injury or mortality is anticipated 
or authorized for this activity. Below we describe how the take is 
estimated.
    Generally speaking, we estimate take by considering: (1) acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the take estimate.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur permanent threshold shift (PTS) of some 
degree (equated to Level A harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also

[[Page 87942]]

informed to varying degrees by other factors related to the source 
(e.g., frequency, predictability, duty cycle), the environment (e.g., 
bathymetry), and the receiving animals (hearing, motivation, 
experience, demography, behavioral context) and can be difficult to 
predict (Southall et al., 2007, Ellison et al., 2012). Based on what 
the available science indicates and the practical need to use a 
threshold based on a factor that is both predictable and measurable for 
most activities, NMFS uses a generalized acoustic threshold based on 
received level to estimate the onset of behavioral harassment. NMFS 
predicts that marine mammals are likely to be behaviorally harassed in 
a manner we consider Level B harassment when exposed to underwater 
anthropogenic noise above received levels of 120 dB referenced to 1 
micropascal (re 1 [mu]Pa) root mean square (rms) for continuous (e.g., 
vibratory pile-driving, DTH) and above 160 dB re 1 [mu]Pa (rms) for 
non-explosive impulsive, intermittent (e.g., impact driving, DTH) 
sources.
    The Coast Guard's planned activity includes the use of continuous 
(vibratory, DTH) and impulsive (impact pile driving and DTH) sources, 
and therefore the 120 and 160 dB re 1 [mu]Pa (rms) thresholds, 
respectively, are applicable.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual 
criteria to assess auditory injury (Level A harassment) to five 
different marine mammal groups (based on hearing sensitivity) as a 
result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). The Coast Guard's planned activity 
includes the use of impulsive (impact pile driving and DTH) and non-
impulsive (vibratory, DTH) sources.
    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS 2018 Technical Guidance, which may be accessed at 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1[mu]Pa\2\s. In this table, thresholds are abbreviated to reflect American National
  Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
  frequency weighting, which is not the intent for the Technical Guidance. Hence, the subscript ``flat'' is
  being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
  hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
  designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
  that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
  exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
  is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into estimating the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    The sound field in the project area is the existing background 
noise plus additional construction noise from the project. Marine 
mammals are expected to be affected via sound generated by the primary 
components of the project (i.e., impact pile driving, vibratory pile 
driving, vibratory pile removal, and DTH).
    The actual durations of each installation method vary depending on 
the type and size of the pile. In order to calculate distances to the 
Level A harassment and Level B harassment sound thresholds for piles of 
various sizes and equipment being used in this project, NMFS used 
acoustic monitoring data from other locations to develop source levels 
(table 4). Note that piles and holes of differing sizes have different 
sound source levels (SSL). For simplicity and to be precautionary we 
analyze the largest pile diameter of each type (e.g., 24-inch (0.61 m) 
diameter) even though it is possible at some locations in some 
situations smaller pile diameters may be used or be removed.

                                          Table 4--Sound Source Levels
----------------------------------------------------------------------------------------------------------------
                                          Sound source level at 10
          Method and pile type                   meters (dB)                      Literature source
----------------------------------------------------------------------------------------------------------------
Timber Vibratory.......................  152 RMS...................  Greenbusch Group 2018.
24-inch Steel Pipe Vibratory...........  162 RMS...................  Laughlin 2010.
Timber Impact..........................  170 RMS, 160 SEL, 180 Pk..  CALTRANS 2015.
Composite impact.......................  153 RMS, 145 SEL..........  CALTRANS 2020.
24-inch Steel Pipe Impact..............  190 RMS, 177 SEL, 203 Pk..  CALTRANS 2015.
24-inch Concrete Impact................  170 RMS, 159 SEL, 184 Pk..  WSDOT 2007.
DTH Non-impulsive component............  167 RMS...................  Heyvaert & Reyff 2021.

[[Page 87943]]

 
24-inch DTH Impulsive component........  159 SEL, 184 dB Pk........  Heyvaert & Reyff 2021.
----------------------------------------------------------------------------------------------------------------
Note: It is assumed that noise levels during pile installation and removal are similar. SEL = single strike
  sound exposure level; Pk = peak sound level; RMS = root mean square.

Level B Harassment Zones

    Transmission loss (TL) is the decrease in acoustic intensity as an 
acoustic pressure wave propagates out from a source. TL parameters vary 
with frequency, temperature, sea conditions, current, source and 
receiver depth, water depth, water chemistry, and bottom composition 
and topography. The general formula for underwater TL is:

TL = B x Log<INF>10</INF> (R1/R2),

Where

TL = transmission loss in dB
B = transmission loss coefficient; for practical spreading equals 15
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement

    The recommended TL coefficient for most nearshore environments is 
the practical spreading value of 15. This value results in an expected 
propagation environment that would lie between spherical and 
cylindrical spreading loss conditions, which is the most appropriate 
assumption for the Coast Guard's planned activity.
    Using the practical spreading model, the Coast Guard determined 
underwater noise would fall below the behavioral effects thresholds of 
120 dB rms or 160 dB rms for marine mammals at a maximum radial 
distances from 46 m for impact driving of timber or concrete piles to 
13,594 m for DTH (table 5). These distances determine the maximum Level 
B harassment zones for the project. It should be noted that, based on 
the geography of many of the sites, sound will not reach the full 
distance of the Level B harassment isopleth. Generally, due to 
interaction with land, only a portion of the possible area is 
ensonified.

      Table 5--Calculated Distances to Level B Harassment Isopleths
------------------------------------------------------------------------
                                                       Level B isopleth
                Method and pile type                          (m)
------------------------------------------------------------------------
Timber Vibratory....................................               1,359
24-inch Steel Pipe Vibratory........................               6,310
Timber Impact.......................................                  46
Composite Impact....................................                   3
24-inch Steel Pipe Impact...........................               1,000
24-inch Concrete Impact.............................                  46
DTH.................................................              13,594
------------------------------------------------------------------------

Level A Harassment Zones

    When the NMFS Technical Guidance (2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note 
that, because of some of the assumptions included in the methods used 
for these tools, we anticipate that isopleths produced are typically 
going to be overestimates of some degree, which may result in some 
degree of overestimate of take by Level A harassment. However, these 
tools offer the best way to predict appropriate isopleths when more 
sophisticated three dimensional modeling methods are not available, and 
NMFS continues to develop ways to quantitatively refine these tools, 
and will qualitatively address the output where appropriate. For 
stationary sources such as pile driving or DTH, NMFS User Spreadsheet 
predicts the closest distance at which, if a marine mammal remained at 
that distance the whole duration of the activity, it would not incur 
PTS.
    Inputs used in the User Spreadsheet (table 6), and the resulting 
isopleths are reported below (table 7). We analyzed scenarios with up 
to five piles per day to account for maximum possible production rates. 
Level A harassment thresholds for impulsive sound sources (impact pile 
driving and DTH) are defined for both the cumulative sound exposure 
level (SEL<INF>cum</INF>) and Peak sound pressure level (SPL), with the 
threshold that results in the largest modeled isopleth for each marine 
mammal hearing group used to establish the Level A harassment isopleth. 
In this analysis, Level A harassment isopleths based on 
SEL<INF>cum</INF> were always larger than those based on Peak SPL.

                    Table 6--Inputs of Pile Driving and DTH Activity Used in User Spreadsheet
----------------------------------------------------------------------------------------------------------------
                                                                                     Duration
                                                                     Weighting     (minutes) or
                      Method and pile type                            factor        strikes per    Piles per day
                                                                    adjustment         pile
----------------------------------------------------------------------------------------------------------------
Timber Vibratory................................................             2.5              50               5
24-inch Steel Pipe Vibratory....................................             2.5              10               5

[[Page 87944]]

 
Timber Impact...................................................               2             100               5
Composite Impact................................................               2             120               5
24-inch Steel Pipe Impact.......................................               2             400               1
24-inch Concrete Impact.........................................               2             184               5
24-inch DTH.....................................................               2              60               2
----------------------------------------------------------------------------------------------------------------
Note: Data for all equipment types were for transmission loss of 15*log(r) and distance of source level
  measurements was 10 meters.

    The above input scenarios lead to a Level A harassment isopleth of 
0 to 517.1 m, depending on the marine mammal hearing group and scenario 
(table 7).

 Table 7--Calculated Distances to Level A Harassment Isopleths (m) During Pile Installation and Removal for Each
                                                  Hearing Group
----------------------------------------------------------------------------------------------------------------
         Method and pile type            Low frequency   Mid frequency  High frequency     Phocid      Otariid
----------------------------------------------------------------------------------------------------------------
Timber Vibratory......................             1.5             0.1             2.2          0.9          0.1
24-inch Steel Pipe Vibratory..........             7.1             0.6            10.4          4.3          0.3
Timber Impact.........................            18.4             0.7            21.9          9.9          0.7
Composite Impact......................             2.1             0.1             2.5          1.1          0.1
24-inch Steel Pipe Impact.............           215.8             7.7           257.1        115.5          8.4
24-inch Concrete Impact...............            27.7               1            33.0         14.8          1.1
24-inch DTH...........................           434.1            15.4           517.1        232.2         16.9
----------------------------------------------------------------------------------------------------------------
Note: a minimum 20-m shutdown zone, as proposed by the Coast Guard, will be implemented for all species and
  activity types to prevent direct injury of marine mammals.

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. Here we describe how the information provided above is 
brought together to produce a quantitative take estimate.
    Available information regarding marine mammal occurrence and 
abundance in the vicinity of the eight facilities includes monitoring 
data from the NMFS Alaska Regional Office, prior incidental take 
authorizations, and ESA consultations on additional projects (table 8). 
When local density information is not available, data aggregated in the 
Navy's Marine Mammal Species Density Database (U.S. Navy, 2019, 2020) 
for the Gulf of Alaska or Northwest Testing and Training areas (table 
9) or nearby proxies from the monitoring data are used; whichever gives 
the most precautionary take estimate was chosen.

[[Page 87945]]

[GRAPHIC] [TIFF OMITTED] TR20DE23.003


                                 Table 9--Marine Mammal Densities From Navy Data
----------------------------------------------------------------------------------------------------------------
                                                                                          Gulf of Alaska/ Prince
                                                                      Southeast Alaska        William Sound
                               Stock                                 facilities species     facilities species
                                                                      density (#/km\2\)  density (#/km\2\) 3 4 5
                                                                            1 2 3
----------------------------------------------------------------------------------------------------------------
Gray whale.........................................................               0.016                    0.048
Humpback whale Hawai[revaps]i \6\..................................               0.002                    0.093
Humpback Whale Mexico-North Pacific 6 7............................                 N/A                    0.093
Fin whale..........................................................              0.0001                    0.068
Minke whale........................................................               0.001                    0.006
Killer whale (General).............................................                 N/A                    0.005
Killer whale Resident..............................................               0.035                      N/A
Killer whale Transient.............................................               0.006                      N/A
Pacific white-sided dolphin........................................               0.085                    0.020
Dall's porpoise....................................................               0.121                    0.218
Harbor porpoise \6\................................................               0.010                    0.455
California sea lion \8\............................................               0.025                        0

[[Page 87946]]

 
Northern fur seal..................................................               0.276                    0.090
Steller sea lion...................................................               0.316                    0.068
Harbor seal........................................................               1.727                    0.169
----------------------------------------------------------------------------------------------------------------
\1\ Facilities including Ketchikan, Sitka, Juneau, and Petersburg.
\2\ Southeast Alaska density values generally from Western Behm Canal values reported in U.S. Navy (2020).
\3\ Where species density values reported in the U.S. Navy (2020) and U.S. Navy (2021) vary by time of year, the
  greatest value is presented here as a conservative estimate.
\4\ Facilities including Kodiak, Seward, Valdez, and Cordova.
\5\ Gulf of Alaska/Prince William Sound species density values generally from inshore or within the 500-1000 m
  isobath values reported in U.S. Navy (2021).
\6\ New stock designations for humpback whales and harbor porpoise were finalized in July 2023 (2022 SARs). The
  density values listed correspond to the stock alignments in the 2021 and previous SARs.
\7\ The range for the Western North Pacific stock of humpback whales from the 2021 and previous SARs did not
  extend to Southeast Alaska.
\8\ U.S. Navy 2020 density values for California sea lion do not include Western Behm Canal and the value used
  here is from the San Juan Islands, the next closest zone to the project area where a density value is
  available.

    The data on abundance and occurrence from prior projects is derived 
from the following projects: (1) Kodiak--Protected Species Observer 
(PSO) monitoring reports from dock repair projects in 2018 and 2020 
(NMFS Alaska Region); (2) Sitka--Data are from the Old Sitka Dock 
project (86 FR 22392, April 28, 2021); (3) Ketchikan--Data are from the 
Tongass Narrows project (85 FR 673, January 7, 2020) and other projects 
in preparation in the area; (4) Valdez--Data are from monitoring for an 
oil spill response in late April and early May 2020 (NMFS Alaska 
Region); (5) Juneau--Data are from the Erickson Dock project (84 FR 
65360, November 27, 2019) and the Juneau Waterfront Improvement Project 
(85 FR 18562, April 2, 2020); and, (6) Seward--An incidental harassment 
authorization application for the Seward Passenger Terminal project 
recently received by NMFS included information resulting from 
consultation with the Alaska SeaLife Center, the Kenai Fjords National 
Park Service, local whale watching companies, and scientific literature 
to estimate the occurrence of marine mammals in Seward.
    To quantitatively assess exposure of marine mammals to noise from 
pile driving and drilling activities when density estimates are most 
appropriate, we used the density estimate and the annual anticipated 
number of work days for each activity at each facility to determine the 
number of animals potentially harassed on any one day of activity. The 
calculation is:

Exposure estimate = density x harassment area x maximum days of 
activity

    For example, exposure estimates at the Ketchikan site for gray 
whales were calculated by first finding the product of the SE Alaska 
species density (0.0155 animals/km\2\), the ensonified area for the 
activity (e.g., 1.45 km\2\ for vibratory pile driving of timber piles), 
for the anticipated number of days for that activity each year (10 
days/year). After finding the product for each activity for each year, 
the values were summed to find the total number of takes for that 
species across all 5 years. This method was used for all species for 
which local occurrence data were not available.
    When occurrence data from prior projects are the most appropriate 
data for exposure estimation, we used the occurrence estimate (number/
unit of time) and the maximum work days (converted to the appropriate 
unit of time as needed) per year at each facility to determine the 
number of animals potentially exposed to an activity. The calculation 
is:

Exposure estimate = occurrence/time x time of activity

and these values are then summed across activity/pile types.
    When exposure estimates from density data are used for sites with 
no local occurrence data and the exposure estimate is less than a 
typical group size, we increase the estimated take based on that group 
size to account for the possibility a single group entering the project 
area would exceed authorized take. Table 10 shows the source of data 
used in exposure estimates.
    The size of the Level B harassment zones for each facility and 
activity are in table 11. Level A harassment take is only authorized 
for the activities creating the largest Level A harassment zones: DTH 
and impact driving of steel pipe piles (see Figures 6-2 through Figure 
6-9 in the Coast Guard's application), and for species that would be 
difficult for observers to detect within large, unconfined zones: high 
frequency cetaceans and phocid pinnipeds. The topography of sites and 
facilities in Seward, Juneau, Sitka, and Petersburg are restricted such 
that noise would be confined to a small area or basin, and PSOs would 
be able to observe any marine mammals approaching the activity are and 
Level A shutdown zone with enough warning that work could be stopped 
before a take by Level A harassment would occur. The facilities at the 
remaining four sites (Kodiak, Ketchikan, Valdez, and Cordova) are less 
confined, and PSOs may be unable to observe cryptic species at the 
calculated isopleths. Therefore, we have conservatively authorized 
small numbers of take by Level A harassment for high frequency 
cetaceans and phocid pinnipeds at these sites.

[[Page 87947]]

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[[Page 87948]]



          Table 11--Level B Harassment Areas at Each Facility (km\2\) for Each Method and/or Pile Type
----------------------------------------------------------------------------------------------------------------
                                                Timber       Steel     Timber     Composite     Steel
                  Facility                     vibratory   vibratory   impact    \1\ impact    impact      DTH
----------------------------------------------------------------------------------------------------------------
Kodiak......................................         1.3        4.51     0.006             0      1.03      4.51
Sitka.......................................        0.87        5.67     0.007             0      0.56  ........
Ketchikan...................................        1.45        7.29     0.004             0      1.06      10.1
Valdez......................................        2.62       40.21     0.007             0      1.43  ........
Cordova.....................................  ..........       23.42  ........  ............      1.57  ........
Juneau......................................        1.62          NA     0.003             0        NA  ........
Petersburg..................................        1.63        2.89     0.006             0      1.33  ........
Seward......................................  ..........        0.24  ........  ............      0.24  ........
----------------------------------------------------------------------------------------------------------------
\1\ Composite Level B harassment zone (3 m) is completely encompassed by the 20 m shutdown zone proposed by
  Coast Guard.

    The calculated Level B harassment takes using the above data for 
each year are in table 12 and for each facility over the course of the 
project are in table 13. See tables 6-14 through 6-21 in the 
application and the supplemental memo (composite piles) for detailed 
calculations of estimated take for each pile type and activity at each 
facility. The calculated Level A harassment takes using the above data 
for each year are in table 14 and for each facility over the course of 
the five years of the rule are in table 15.
    Table 16 summarizes Level A and Level B harassment take authorized 
for the project as well as the percentage of each stock expected to be 
taken in the year with the maximum annual takes over the course of the 
project.

                    Table 12--Level B Harassment Take in Each of the Five Years and in Total
----------------------------------------------------------------------------------------------------------------
                          Stock                            Year 1   Year 2   Year 3   Year 4   Year 5    Total
----------------------------------------------------------------------------------------------------------------
Gray whale..............................................        8        8        8        8        8         40
Humpback whale *........................................      160      174      164      160      160        818
Fin whale...............................................       13       23       13       13       13         75
Minke whale.............................................        5        6        5        5        5     \a\ 26
Killer whale *..........................................      103  b d 127  b c 107      103      103  b c d 543
Pacific white-sided dolphin.............................      215  \b\ 233  \c\ 227      215      215  c d 1,105
Dall's porpoise.........................................      114      147      115      114      114        604
Harbor porpoise Northern Southeast Alaska Inland Waters.       11       11       11       11       11         55
Harbor Porpoise Southern Southeast Alaska Inland Waters.       11       11       11       11       11         55
Harbor porpoise Yakutat/Southeast Alaska Offshore Waters       50       50       50       50       50        250
Harbor porpoise Gulf of Alaska..........................       47      115       48       47       47        304
California sea lion.....................................       10       10       10       10       10         50
Northern fur seal.......................................        9       23   \d\ 21        9        9     \d\ 71
Steller sea lion Eastern................................      425      425      425      425      425      2,125
Steller sea lion Western................................       24       34       32       24       24        138
Harbor seal Prince William Sound........................      148      442      344      148      148      1,230
Harbor seal Lynn Canal/Stephens Passage.................      860      860      860      860      860      4,300
Harbor seal Sitka/Chatham Straight......................      230      230      230      230      230      1,150
Harbor seal Clarence Strait.............................      412      412      412      412      412      2,060
Harbor seal South Kodiak................................       17       17       17       17       17         85
----------------------------------------------------------------------------------------------------------------
* Stocks of killer whales and humpback whales cannot generally be identified in the field so total take is
  listed at species level only.
\a\ Corrected addition error from the proposed rule.
\b\ Total number has changed from the proposed rule due to corrections of typographical errors in the proposed
  rule.
\c\ Typographical error in take levels at Cordova corrected from proposed rule.
\d\ Typographical error in take levels at Seward corrected from proposed rule.


[[Page 87949]]

[GRAPHIC] [TIFF OMITTED] TR20DE23.005


[[Page 87950]]

[GRAPHIC] [TIFF OMITTED] TR20DE23.006


                                          Table 14--Estimated Level A Harassment Take in Each Year and in Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Species and stock                         Year 1          Year 2          Year 3          Year 4          Year 5           Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dall's porpoise Alaska..................................              86              98              86              86              86             442
Harbor porpoise Southern Southeast Alaska Inland Waters.              20              20              20              20              20             100
Harbor porpoise Gulf of Alaska..........................              55              85              55              55              55             305
Harbor seal South Kodiak................................              20              20              20              20              20             100
Harbor seal Clarence Strait.............................              20              20              20              20              20             100
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 87951]]

[GRAPHIC] [TIFF OMITTED] TR20DE23.007


 Table 16--Estimated Level A and Level B Harassment Take and Percent of
       Stock for the Maximum Annual Estimated Takes of the Project
------------------------------------------------------------------------
                                                                Percent
      Species and stock        Level A    Level B     Total     of stock
------------------------------------------------------------------------
Gray whale Eastern North              0          8          8       0.03
 Pacific....................
Humpback whale                        0        174        174   \a\ 1.48
 Hawai[revaps]i.............
Humpback whale Mexico-North                                     \a\ 0.76
 Pacific....................
Fin whale Northeast Pacific.          0         23         23        N/A
Minke whale Alaska..........          0          6          6        N/A
Killer whale Alaska Resident          0    \c\ 127        127   \a\ 4.55
Killer whale Gulf of Alaska,                                    \a\ 3.85
 Aleutian Islands, Bearing
 Sea Transient..............
Killer whale Northern                                           \a\ 3.23
 Resident...................
Killer whale AT1 Transient                                     \a\ \b\ 0
 \b\........................
Killer whale West Coast                                         \a\ 3.23
 Transient..................
Pacific white-sided dolphin           0    \c\ 233        233       0.87
 North Pacific..............
Dall's porpoise Alaska......         98        147        245        N/A
Harbor porpoise Northern              0         11         11       0.68
 Southeast Alaska Inland
 Waters.....................
Harbor porpoise Southern             20         11         31       3.48
 Southeast Alaska Inland
 Waters.....................
Harbor porpoise Yakutat/              0         50         50        N/A
 Southeast Alaska Offshore
 Waters.....................
Harbor porpoise Gulf of              85        115    \c\ 200       0.64
 Alaska.....................
California sea lion U.S.....          0         10         10       0.00
Northern fur seal Eastern             0     \c\ 23         23       0.00
 Pacific....................
Steller sea lion Eastern....          0        425        425       0.98
Steller sea lion Western....          0         34         34       0.06
Harbor seal Prince William            0        442        442       1.06
 Sound......................
Harbor seal Lynn Canal/               0        860        860       7.25
 Stephens Passage...........
Harbor seal Sitka/Chatham             0        230        230       1.94
 Straight...................
Harbor seal Clarence Strait.         20        412        432       1.74
Harbor seal South Kodiak....         20         17         37       0.17
------------------------------------------------------------------------
\a\ Percent of stock impacted for humpback and killer whales was
  estimated assuming each stock is taken in proportion to its population
  size at any given facility site from the total take (e.g., for killer
  whales at Kodiak, the Alaska Resident and Gulf of Alaska stocks are
  the only stocks present. Of these, the Alaska Resident stock
  represents approximately 80 percent of the available animals, and GOA
  represents approximately 20 percent, giving 4 total Alaska Resident
  killer whale takes over the 5 years, and 1 GOA killer whale take. This
  division was replicated for each site for all present stocks. Takes
  were then calculated for each site based on the proportional
  representation of available stocks. Total takes for each stock are
  shown as a percentage of the stock size.)
\b\ AT1 Transient killer whales have the potential to be present in the
  Seward, Valdez, and Cordova, however we do not expect any of the seven
  individuals to approach the project sites, therefore no take is
  expected to occur for this stock and none is authorized.
\c\ Corrected typographical error from the proposed rule.

Mitigation

    Under Section 101(a)(5)(A) of the MMPA, NMFS must set forth the 
permissible methods of taking pursuant to such activity, and other 
means of effecting the least practicable adverse impact on such species 
or stock and its habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance, and on the 
availability of such species or stock for taking for certain 
subsistence uses (``least practicable adverse impact''). NMFS does not 
have a regulatory definition for ``least practicable adverse impact.'' 
NMFS regulations require applicants for incidental take authorizations 
to include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat, as 
well as

[[Page 87952]]

subsistence uses. This considers the nature of the potential adverse 
impact being mitigated (likelihood, scope, range). It further considers 
the likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), and the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations.
    The mitigation strategies described below largely follow those 
required and successfully implemented under previous incidental take 
authorizations issued in association with similar construction 
activities. Measurements from similar pile driving events were coupled 
with practical spreading loss and other relevant information to 
estimate harassment zones (see Estimated Take); these zones were used 
to develop mitigation measures for DTH and pile driving activities at 
the eight facilities. Background discussion related to underwater sound 
concepts and terminology is provided in the section on Description of 
Sound Sources, in the proposed rule (88 FR 26432, April 28, 2023).
    The following mitigation measures will be implemented:
    <bullet> Avoid direct physical interaction with marine mammals 
during construction activity. If a marine mammal comes within 20 m of 
such activity, operations must cease and vessels must reduce speed to 
the minimum level required to maintain steerage and safe working 
conditions. The Coast Guard has elected to establish a minimum shutdown 
zone size of 20 m, which is larger than NMFS' typical requirement of a 
minimum 10 m shutdown zone;
    <bullet> Conduct training between construction supervisors and 
crews and the marine mammal monitoring team and relevant Coast Guard 
staff prior to the start of all DTH drilling, pile driving, cutting or 
power washing activity and when new personnel join the work, so that 
responsibilities, communication procedures, monitoring protocols, and 
operational procedures are clearly understood;
    <bullet> DTH and pile driving activity must be halted upon 
observation of either a species for which incidental take is not 
authorized or a species for which incidental take has been authorized 
but the authorized number of takes has been met, entering or within the 
harassment zone;
    <bullet> The Coast Guard will establish and implement a minimum 
shutdown zone of 20 m during all DTH, pile driving and removal 
activity, as well as the larger zones indicated in table 17. The 
purpose of a shutdown zone is generally to define an area within which 
shutdown of the activity would occur upon sighting of a marine mammal 
(or in anticipation of an animal entering the defined area). Shutdown 
zones typically vary based on the activity type and marine mammal 
hearing group. The Coast Guard has elected to establish a minimum 
shutdown zone size of 20 m, which is larger than NMFS' typical 
requirement of a minimum 10 m shutdown zone;
    <bullet> Employ PSOs and establish monitoring locations as 
described in the application, any issued LOA and the Marine Mammal 
Monitoring Plan. The Coast Guard must monitor the project area to the 
maximum extent possible based on the required number of PSOs, required 
monitoring locations, and environmental conditions. Anticipated 
observable zones within the designated monitoring zones shall be 
identified in the Marine Mammal Monitoring Plan, subject to approval by 
NMFS. For all DTH and pile driving at least one PSO must be used. The 
PSO will be stationed as close to the activity as possible;
    <bullet> The placement of the PSOs during all DTH and pile driving 
activities will ensure that the entire shutdown zone is visible during 
pile installation. Should environmental conditions deteriorate such 
that marine mammals within the entire shutdown zone will not be visible 
(e.g., fog, heavy rain), pile driving must be delayed until the PSO is 
confident marine mammals within the shutdown zone could be detected;
    <bullet> Monitoring must take place from 30 minutes prior to 
initiation of DTH and pile driving activity through 30 minutes post-
completion of DTH and pile driving activity. Pre-start clearance 
monitoring must be conducted during periods of visibility sufficient 
for the lead PSO to determine the shutdown zones clear of marine 
mammals. DTH and pile driving may commence following 30 minutes of 
observation when the determination is made;
    <bullet> If DTH or pile driving is delayed or halted due to the 
presence of a marine mammal, the activity may not commence or resume 
until either the animal has voluntarily exited and been visually 
confirmed beyond the shutdown zone or 15 minutes have passed without 
re-detection of the animal;
    <bullet> The Coast Guard must use soft start techniques prior to 
beginning impact pile driving. Soft start requires contractors to 
provide an initial set of three strikes at reduced energy, followed by 
a 30-second waiting period, then two subsequent reduced-energy strike 
sets. A soft start must be implemented at the start of each day's 
impact pile driving and at any time following cessation of impact pile 
driving for a period of 30 minutes or longer;
    <bullet> As described previously, the Coast Guard would adhere to 
in-water work windows designed for the protection of fishes and marine 
mammals under other permitting requirements;
    <bullet> The Coast Guard has volunteered that in-water construction 
activities will occur only during civil daylight hours; and
    <bullet> Pile driving activity must be halted upon observation of 
either a species for which incidental take is not authorized or a 
species for which incidental take has been authorized but the 
authorized number of takes has been met, entering or within the largest 
applicable harassment zone.

                           Table 17--Shutdown Zones (m) for Each Pile Type and Method
----------------------------------------------------------------------------------------------------------------
                                         Low frequency   Mid frequency  High frequency
         Method and pile type              cetacean        cetacean        cetacean        Phocid      Otariid
----------------------------------------------------------------------------------------------------------------
Timber Vibratory......................              20              20              20           20           20
24-inch Steel Pipe Vibratory..........              20              20              20           20           20
Timber Impact.........................              20              20              30           20           20
Composite Impact......................              20              20              20           20           20
24-inch Steel Pipe Impact.............             220              20             260          120           20
24-inch Concrete Impact...............              30              20              40           20           20
24-inch DTH...........................             440              20             520          240           20
----------------------------------------------------------------------------------------------------------------


[[Page 87953]]

    Based on our evaluation of the applicant's planned measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means effecting the least practicable 
impact on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stock for 
subsistence uses.

Monitoring and Reporting

    In order to issue an LOA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of the authorized taking. The MMPA 
implementing regulations at 50 CFR 216.104(a)(13) indicate that 
requests for authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
    <bullet> Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density).
    <bullet> Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving, or feeding areas).
    <bullet> Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
    <bullet> How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
    <bullet> Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or important physical components of marine 
mammal habitat).
    <bullet> Mitigation and monitoring effectiveness.

Visual Monitoring

    <bullet> Monitoring must be conducted by qualified, NMFS-approved 
PSOs, in accordance with the following: PSOs must be independent (i.e., 
not construction personnel) and have no other assigned tasks during 
monitoring periods. At least one PSO must have prior experience 
performing the duties of a PSO during construction activity pursuant to 
a NMFS-issued incidental take authorization. Other PSOs may substitute 
education (degree in biological science or related field), or training 
for experience. The Coast Guard shall submit PSO curriculum vitae (CVs) 
for approval by NMFS. PSOs must be approved by NMFS prior to beginning 
any activity subject to any LOA issued pursuant to this rule.
    <bullet> PSOs must record all observations of marine mammals as 
described in any issued LOA and the NMFS-approved Marine Mammal 
Monitoring Plan, regardless of distance from the pile being driven. 
PSOs shall document any behavioral reactions in concert with distance 
from piles being driven or removed;
    PSOs must have the following additional qualifications:
    <bullet> Ability to conduct field observations and collect data 
according to assigned protocols;
    <bullet> Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
    <bullet> Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    <bullet> Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
and marine mammal behavior; and
    <bullet> Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary;
    <bullet> The Coast Guard must establish the following monitoring 
locations. For all pile driving activities, a minimum of one PSO must 
be assigned to the active pile driving location to monitor the shutdown 
zones and as much of the Level B harassment zones as possible. Possible 
monitoring locations are shown in Figures 6-1 through 6-41 of the 
application and summarized in table 18. The number of PSOs required at 
each facility is dependent upon the size of the Level B harassment area 
as well as the topography of the activity site and a PSO's ability to 
observe the estimated Level A harassment area for the particular 
activity. Where a team of three or more PSOs is required, a lead 
observer or monitoring coordinator must be designated. The lead 
observer must have prior experience performing the duties of a PSO 
during construction activity pursuant to a NMFS-issued incidental take 
authorization.

 Table 18--Summary of Protected Species Observer (PSO) Coverage at Each
                                Facility
------------------------------------------------------------------------
                                                          Maximum number
                        Facility                              of PSOs
------------------------------------------------------------------------
Kodiak..................................................               2
Sitka...................................................               5
Ketchikan...............................................               5
Valdez..................................................               3
Cordova.................................................               3
Juneau..................................................               3
Petersburg..............................................               3
Seward..................................................               2
------------------------------------------------------------------------

Reporting

    A draft marine mammal monitoring report will be submitted to NMFS 
within 90 days after the completion of pile driving activities, or 60 
days prior to a requested date of issuance of any future LOAs for 
projects at the same location, whichever comes first. The report will 
include an overall description of work completed, a narrative regarding 
marine mammal sightings, and associated PSO data sheets. Specifically, 
the report must include:
    <bullet> Dates and times (begin and end) of all marine mammal 
monitoring.
    <bullet> Construction activities occurring during each daily 
observation period, including the number and type of piles driven or 
removed and by what method (i.e., impact or cutting) and the total 
equipment duration. When possible, the report should include the number 
of strikes for each pile (impact driving, DTH) and, for DTH, the 
duration of operation for both impulsive and non-impulsive components 
as well as the strike rate.
    <bullet> PSO locations during marine mammal monitoring.
    <bullet> Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly),

[[Page 87954]]

including Beaufort sea state and any other relevant weather conditions 
such as cloud cover, fog, sun glare, and overall visibility to the 
horizon, and estimated observable distance;
    <bullet> Upon observation of a marine mammal, the following 
information: name of PSO who sighted the animal(s), and PSO location 
and activity at time of sighting; time of sighting; identification of 
the animal(s) (e.g., genus/species, lowest possible taxonomic level, or 
unidentified), PSO confidence in identification, and the composition of 
the group if there is a mix of species; distance and bearing of each 
marine mammal observed relative to the pile being driven for each 
sighting (if pile driving was occurring at time of sighting); estimated 
number of animals (min/max/best estimate); estimated number of animals 
by cohort (adults, juveniles, neonates, group composition, etc.); 
animal's closest point of approach and estimated time spent within the 
harassment zone; and description of any marine mammal behavioral 
observations (e.g., observed behaviors such as feeding or traveling), 
including an assessment of behavioral responses thought to have 
resulted from the activity (e.g., no response or changes in behavioral 
state such as ceasing feeding, changing direction, flushing, or 
breaching);
    <bullet> Number of marine mammals detected within the harassment 
zones, by species; and
    <bullet> Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting changes in behavior of the 
animal(s), if any.
    If no comments are received from NMFS within 30 days, the draft 
final report will constitute the final report. If comments are 
received, a final report addressing NMFS comments must be submitted 
within 30 days after receipt of comments.

Reporting Injured or Dead Marine Mammals

    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the Coast Guard must 
immediately cease the specified activities and report the incident to 
the NMFS Office of Protected Resources (OPR) 
(<a href="/cdn-cgi/l/email-protection#f0a0a2deb9a4a0debd9f9e99849f82999e97a295809f828483b09e9f9191de979f86"><span class="__cf_email__" data-cfemail="4f1f1d61061b1f61022021263b203d2621281d2a3f203d3b3c0f21202e2e61282039">[email protected]</span></a>) and to the Alaska Regional 
Stranding Coordinator as soon as feasible. If the death or injury was 
likely caused by the specified activity, the Coast Guard must 
immediately cease the specified activities until NMFS is able to review 
the circumstances of the incident and determine what, if any, 
additional measures are appropriate to ensure compliance with the terms 
of the LOA and regulations. The Coast Guard must not resume their 
activities until notified by NMFS. The report must include the 
following information:
    <bullet> Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    <bullet> Species identification (if known) or description of the 
animal(s) involved;
    <bullet> Condition of the animal(s) (including carcass condition if 
the animal is dead);
    <bullet> Observed behaviors of the animal(s), if alive;
    <bullet> If available, photographs or video footage of the 
animal(s); and
    <bullet> General circumstances under which the animal was 
discovered.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS' implementing 
regulations (54 FR 40338, September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    DTH and pile driving activities associated with the maintenance 
projects, as described previously, have the potential to disturb or 
displace marine mammals. Specifically, the specified activities may 
result in take, in the form of Level B harassment (behavioral 
disturbance) only for all species other than the harbor porpoise, 
harbor seal, and Dall's porpoise from underwater sounds generated from 
DTH and pile driving. Potential takes could occur if individual marine 
mammals are present in the ensonified zone when DTH or pile driving is 
happening.
    No serious injury or mortality would be expected even in the 
absence of the mitigation measures. For all species other than the 
harbor seal, harbor porpoise and Dall's porpoise, no Level A harassment 
is anticipated due to the confined nature of the facilities, the 
ability to position PSOs at stations from which they can observe the 
entire shutdown zones, and the high visibility of the species expected 
to be present at each site. Additionally, much of the anticipated 
activity would involve vibratory driving or installation of small-
diameter, non-steel piles, and include measures designed to minimize 
the possibility of injury. The potential for injury is small for mid- 
and low-frequency cetaceans and sea lions, and is expected to be 
essentially eliminated through implementation of the planned mitigation 
measures--soft start (for impact driving), and shutdown zones.
    DTH and impact driving, as compared with vibratory driving, have 
source characteristics (short, sharp pulses with higher peak levels and 
much sharper rise time to reach those peaks) that are potentially 
injurious or more likely to produce severe behavioral reactions. Given 
sufficient notice through use of soft start, marine mammals are 
expected to move away from a sound source that is annoying prior to it 
becoming potentially injurious or resulting in more severe behavioral 
reactions. Environmental conditions in these waters are expected to 
generally be good, with calm sea states, and we expect conditions would 
allow a high marine mammal detection capability, enabling a high rate 
of success in implementation of shutdowns to avoid injury.
    As described previously, there are multiple species that should be 
considered rare in the project areas and for which we propose to 
authorize only nominal and precautionary take. Therefore, we do not 
expect meaningful impacts to these species (i.e., gray whale, minke 
whale, transient and resident killer whales, and California sea lions) 
and find that the total marine mammal take from each of the specified 
activities will have a negligible impact on these marine mammal 
species.
    For remaining species, we discuss the likely effects of the 
specified activities

[[Page 87955]]

in greater detail here. Effects on individuals that are taken by Level 
B harassment, on the basis of reports in the literature as well as 
monitoring from other similar activities, will likely be limited to 
reactions such as increased swimming speeds, increased surfacing time, 
or decreased foraging (if such activity were occurring) (e.g., Thorson 
and Reyff, 2006; U.S. Navy, 2012; Lerma, 2014). Most likely, 
individuals will simply move away from the sound source and be 
temporarily displaced from the areas of pile driving, although even 
this reaction has been observed primarily only in association with 
impact pile driving. The pile driving activities analyzed here are 
similar to, or less impactful than, numerous other construction 
activities conducted in Alaska, San Francisco Bay and in the Puget 
Sound region, which have taken place with no known long-term adverse 
consequences from behavioral harassment.
    The U.S. Navy has conducted multi-year activities in various 
locations such as San Diego Bay and Puget Sound, potentially affecting 
marine mammals, and typically involving greater levels of activity than 
what is contemplated here. Reporting from these activities has 
similarly documented no apparently consequential behavioral reactions 
or long-term effects on marine mammal populations (Lerma, 2014; U.S. 
Navy, 2016a and b).
    Repeated exposures of individuals to relatively low levels of sound 
outside of preferred habitat areas are unlikely to significantly 
disrupt critical behaviors. Thus, even repeated Level B harassment of 
some small subset of the overall stock is unlikely to result in any 
significant realized decrease in viability for the affected 
individuals, and thus would not result in any adverse impact to the 
stock as a whole. Level B harassment will be reduced to the level of 
least practicable adverse impact through use of mitigation measures 
described herein and, if sound produced by project activities is 
sufficiently disturbing, animals are likely to simply avoid the area 
while the activity is occurring. While vibratory driving or DTH 
associated with some project components may produce sound at distances 
of many kilometers from the pile driving site, thus intruding on 
higher-quality habitat, the project sites themselves and the majority 
of sound fields produced by the specified activities are within 
industrialized areas. Therefore, we expect that animals annoyed by 
project sound would simply avoid the area and use more-preferred 
habitats.
    In addition to the expected effects resulting from authorized Level 
B harassment, we anticipate that harbor seals, harbor porpoises, and 
Dall's porpoises may sustain some limited Level A harassment in the 
form of auditory injury at four of the facilities, assuming they remain 
within a given distance of the pile driving activity for the full 
number of pile strikes or DTH strikes. Considering the short duration 
to impact drive or vibrate each pile and breaks between pile 
installations (to reset equipment and move pile into place), this means 
an animal would have to remain within the area estimated to be 
ensonified above the Level A harassment threshold for multiple hours. 
This is highly unlikely given marine mammal movement throughout the 
area. Harbor seals and porpoises in these locations that do experience 
PTS would likely only receive slight PTS, i.e., minor degradation of 
hearing capabilities within regions of hearing that align most 
completely with the energy produced by DTH or pile driving, i.e., the 
low-frequency region below 2 kHz, not severe hearing impairment or 
impairment in the regions of greatest hearing sensitivity. If hearing 
impairment occurs, it is most likely that the affected animal would 
lose a few decibels in its hearing sensitivity, which in most cases is 
not likely to meaningfully affect its ability to forage and communicate 
with conspecifics. As described above, we expect that marine mammals 
would be likely to move away from a sound source that represents an 
aversive stimulus, especially at levels that would be expected to 
result in PTS, given sufficient notice through use of soft start. 
Shutdown zones for the porpoises are only slightly smaller than the 
extent of the Level A harassment zones, further minimizing the chances 
for PTS or more severe effects.
    In addition, although affected humpback whales and Steller sea 
lions may be from distinct population segments (DPSs) that are listed 
under the ESA, it is unlikely that minor noise impacts in a small, 
localized area of sub-optimal habitat would have any effect on the 
stocks' ability to recover. In combination, we believe that these 
factors, as well as the available body of evidence from other similar 
activities, demonstrate that the potential effects of the specified 
activities will have only minor, short-term effects on individuals. The 
specified activities are not expected to impact rates of recruitment or 
survival and will therefore not result in population-level impacts.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
    <bullet> No mortality is anticipated or authorized.
    <bullet> Use of soft start (for impact driving) is expected to 
minimize Level A harassment.
    <bullet> No important habitat areas have been identified within the 
project area.
    <bullet> For all species, the project locations are a very small 
and generally peripheral part of their range.
    <bullet> Authorized Level A harassment would be very small amounts 
and of low degree.
    <bullet> Monitoring reports from similar work in many of the 
locations in Alaska have documented little to no effect on individuals 
of the same species impacted by the specified activities.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
activities will have a negligible impact on the affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(A) of the MMPA for specified 
activities. The MMPA does not define small numbers and so, in practice, 
where estimated numbers are available, NMFS compares the number of 
individuals taken to the most appropriate estimation of abundance of 
the relevant species or stock in our determination of whether an 
authorization is limited to small numbers of marine mammals. When the 
predicted number of individuals to be taken is fewer than one-third of 
the species or stock abundance, the take is considered to be of small 
numbers. Additionally, other qualitative factors may be considered in 
the analysis, such as the temporal or spatial scale of the activities.
    The amount of take NMFS is authorizing is below one-third of the 
estimated stock abundance of all species and stocks (take of 
individuals is less than 14 percent of the abundance of the affected 
stocks for the year of this rulemaking with the maximum amount of 
activity; see table 19). This is likely a conservative estimate because 
it assumes all takes are of different individual animals, which is 
likely not the case. Some individuals may return

[[Page 87956]]

multiple times in a day, but PSOs would count them as separate takes if 
they cannot be individually identified.
    For fin whale, minke whale, Dall's porpoise, and Southeast Alaska 
harbor porpoise, no valid abundance estimate for the entire stock is 
available. There is no stock-wide abundance estimate for Northeast 
Pacific fin whales. However, Muto et al. (2021) estimate the minimum 
stock size for the areas surveyed is 2,554. Therefore, the 23 maximum 
annual authorized takes of this stock represents small numbers of this 
stock. There is no stock-wide abundance estimate for the Alaska stock 
of minke whales. However, Muto et al. (2021) show over 2,000 animals 
for areas surveyed recently. Therefore, the six maximum annual 
authorized takes of this stock represents small numbers of this stock. 
The Alaska stock of Dall's porpoise has no official NMFS abundance 
estimate for this area, as the most recent estimate is greater than 8 
years old. Nevertheless, the most recent estimate was 83,400 animals 
and it is unlikely this number has drastically declined. Therefore, the 
245 maximum annual authorized takes of this stock represents small 
numbers of this stock. There is no stock-wide abundance estimate for 
the Southeast Alaska stock of harbor porpoises. However, Muto et al. 
(2021) estimate the minimum stock size for the areas surveyed is 1,057. 
Therefore, the 92 maximum annual authorized takes of this stock 
represents small numbers of this stock. Therefore, we find that small 
numbers of marine mammals will be taken relative to the population size 
of all stocks.
    Based on the analysis contained herein of the planned activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population sizes of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

    In order to issue regulations and LOAs, NMFS must find that the 
specified activity will not have an ``unmitigable adverse impact'' on 
the subsistence uses of the affected marine mammal species or stocks by 
Alaskan Natives. NMFS has defined ``unmitigable adverse impact'' in 50 
CFR 216.103 as an impact resulting from the specified activity: (1) 
that is likely to reduce the availability of the species to a level 
insufficient for a harvest to meet subsistence needs by: (i) causing 
the marine mammals to abandon or avoid hunting areas; (ii) directly 
displacing subsistence users; or (iii) placing physical barriers 
between the marine mammals and the subsistence hunters; and (2) that 
cannot be sufficiently mitigated by other measures to increase the 
availability of marine mammals to allow subsistence needs to be met.
    As discussed above in the Effects of Specified Activities on 
Subsistence Uses of Marine Mammals section, subsistence harvest of 
harbor seals and other marine mammals is rare in the project areas and 
local subsistence users have not expressed concern about this project. 
All project activities will take place within industrialized areas 
where subsistence activities do not generally occur. The project also 
will not have an adverse impact on the availability of marine mammals 
for subsistence use at locations farther away, where these construction 
activities are not expected to take place. Some minor, short-term 
harassment of the harbor seals could occur, but any effects on 
subsistence harvest activities in the region will be minimal, and will 
not have an adverse impact.
    Based on the effects and locations of the specified activity, and 
the mitigation and monitoring measures, NMFS has determined that there 
will not be an unmitigable adverse impact on subsistence uses from the 
Coast Guard's planned activities.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Coast Guard maintenance construction activities would contain an 
adaptive management component.
    The reporting requirements associated with this final rule are 
designed to provide NMFS with monitoring data from the previous year to 
allow consideration of whether any changes are appropriate. The use of 
adaptive management allows NMFS to consider new information from 
different sources to determine (with input from the Coast Guard 
regarding practicability) on an annual basis if mitigation or 
monitoring measures should be modified (including additions or 
deletions). Mitigation measures could be modified if new data suggests 
that such modifications would have a reasonable likelihood of reducing 
adverse effects to marine mammals and if the measures are practicable.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from general marine mammal and sound research; and (3) any 
information which reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOAs.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the issuance of regulations and 
LOAs, NMFS consults internally, in this case with the Alaska Regional 
Office, whenever we propose to authorize take for endangered or 
threatened species.
    NMFS is authorizing take of Western DPS Steller sea lions 
(Eumetopias jubatus), fin whales (Balenoptera physalus), and Mexico DPS 
of humpback whales (Megaptera novaeangliae), which are listed under the 
ESA. The NMFS Alaska Regional Office issued a Biological Opinion under 
Section 7 of the ESA (https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-coast-guards-alaska-facility-maintenance-and-repair) on the issuance of regulations and an LOA to the Coast Guard 
under section 101(a)(5)(D) of the MMPA by the NMFS Office of Protected 
Resources. The Biological Opinion concluded that the proposed action is 
not likely to jeopardize the continued existence of Western DPS Steller 
sea lions, fin whales, or humpback whales from either the Mexico or 
Western North Pacific DPSs.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must evaluate our proposed action (i.e., the promulgation of 
regulations and subsequent issuance of incidental take authorization) 
and alternatives with respect to potential impacts on the human 
environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A, 
which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that this action qualifies to be categorically excluded from further 
NEPA review.

[[Page 87957]]

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration at the proposed rule stage that this action will not 
have a significant economic impact on a substantial number of small 
entities. The Coast Guard is the sole entity that would be subject to 
the requirements in these proposed regulations, and the Coast Guard is 
not a small governmental jurisdiction, small organization, or small 
business, as defined by the RFA. No comments were received regarding 
this certification, and the factual basis for the certification has not 
changed. As a result, a regulatory flexibility analysis was not 
required and none was prepared.
    This final rule does not contain a collection-of-information 
requirement subject to the provisions of the Paperwork Reduction Act 
because the applicant is a Federal agency.

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: December 14, 2023.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, NMFS amends 50 CFR part 217 
as follows:

PART 217--REGULATIONS GOVERNING THE TAKING OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITES

0
1. The authority citation for part 217 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.


0
2. Add subpart T to read as follows:
Subpart T--Taking Marine Mammals Incidental to U.S. Coast Guard Alaska 
Facility Maintenance and Repair Activities
Sec.
217.190 Specified activity and specified geographical region.
217.191 Effective dates.
217.192 Permissible methods of taking.
217.193 Prohibitions.
217.194 Mitigation requirements.
217.195 Requirements for monitoring and reporting.
217.196 Letters of Authorization.
217.197 Renewals and modifications of Letters of Authorization.
217.198-217.199 [Reserved]

Subpart T--Taking Marine Mammals Incidental to U.S. Coast Guard 
Alaska Facility Maintenance and Repair Activities


Sec.  217.190  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to incidental taking of 
marine mammals by the U.S. Coast Guard (Coast Guard) and those persons 
it authorizes or funds to conduct activities on its behalf in the areas 
outlined in paragraph (b) of this section and that occurs incidental to 
maintenance construction activities.
    (b) The taking of marine mammals by the Coast Guard may be 
authorized in a Letter of Authorization (LOA) only if it occurs within 
Gulf of Alaska waters in the vicinity of one of the following eight 
Coast Guard facilities: Kodiak, Sitka, Ketchikan, Valdez, Cordova, 
Juneau, Petersburg, and Seward.


Sec.  217.191  Effective dates.

    Regulations in this subpart are effective from March 1, 2024, 
through February 28, 2029.


Sec.  217.192  Permissible methods of taking.

    Under LOAs issued pursuant to Sec. Sec.  216.106 of this chapter 
and 217.196, the Holder of the LOA (hereinafter ``Coast Guard'') may 
incidentally, but not intentionally, take marine mammals within the 
areas described in Sec.  217.190(b) by Level A or Level B harassment 
associated with maintenance construction activities, provided the 
activity is in compliance with all terms, conditions, and requirements 
of the regulations in this subpart and the appropriate LOA.


Sec.  217.193  Prohibitions.

    Except for takings described in Sec.  217.192 and authorized by a 
LOA issued under Sec. Sec.  216.106 of this chapter and 217.196, it 
shall be unlawful for any person to do any of the following in 
connection with the activities described in Sec.  217.190:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec. Sec.  216.106 
of this chapter and 217.196;
    (b) Take any marine mammal not specified in such LOAs;
    (c) Take any marine mammal specified in such LOAs in any manner 
other than as authorized;
    (d) Take a marine mammal specified in such LOAs after NMFS 
determines such taking results in more than a negligible impact on the 
species or stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOAs after NMFS 
determines such taking results in an unmitigable adverse impact on the 
species or stock of such marine mammal for taking for subsistence uses.


Sec.  217.194  Mitigation requirements.

    When conducting the activities identified in Sec.  217.190(a), the 
mitigation measures contained in this subpart and any LOA issued under 
Sec. Sec.  216.106 of this chapter and 217.196 must be implemented. 
These mitigation measures shall include but are not limited to:
    (a) General conditions:
    (1) A copy of any issued LOA must be in the possession of the Coast 
Guard, supervisory construction personnel, lead protected species 
observers, and any other relevant designees of the Coast Guard 
operating under the authority of this LOA at all times that activities 
subject to this LOA are being conducted.
    (2) The Coast Guard shall conduct training between construction 
supervisors and crews and the marine mammal monitoring team and 
relevant Coast Guard staff prior to the start of all down-the-hole 
(DTH), pile driving, cutting or power washing activity and when new 
personnel join the work, so that responsibilities, communication 
procedures, monitoring protocols, and operational procedures are 
clearly understood.
    (3) The Coast Guard shall avoid direct physical interaction with 
marine mammals during construction activity. If a marine mammal comes 
within 20 m of an activity regulated under this subpart, operations 
must cease and vessels must reduce speed to the minimum level required 
to maintain steerage and safe working conditions.
    (b) Shutdown zones:
    (1) For all DTH, pile driving, cutting or power washing activity, 
the Coast Guard shall implement a minimum shutdown zone of a 20-m 
radius around the pile or DTH hole. If a marine mammal comes within or 
approaches the shutdown zone, such operations shall cease.
    (2) For all DTH and pile driving activity, the Coast Guard shall 
implement shutdown zones with radial distances as identified in any LOA 
issued under Sec. Sec.  216.106 of this chapter and 217.196. If a 
marine mammal comes within or approaches the shutdown zone, such 
operations shall cease.
    (3) For all DTH and pile driving activity, the Coast Guard shall 
designate monitoring zones with radial distances

[[Page 87958]]

as identified in any LOA issued under Sec. Sec.  216.106 of this 
chapter and 217.196. Anticipated observable zones within the designated 
monitoring zones shall be identified in the Marine Mammal Monitoring 
Plan, subject to approval by NMFS.
    (c) Shutdown protocols:
    (1) The Coast Guard shall deploy Protected Species Observers (PSOs) 
as indicated in the Marine Mammal Monitoring Plan, which shall be 
subject to approval by NMFS, and as described in Sec.  217.195.
    (2) For all DTH and pile driving activities, a minimum of one PSO 
shall be stationed at the active pile driving rig or activity site or 
in reasonable proximity in order to monitor the entire shutdown zone.
    (3) Monitoring must take place from 30 minutes prior to initiation 
of DTH and pile driving activity through 30 minutes post-completion of 
DTH and pile driving activity. Pre-start clearance monitoring must be 
conducted during periods of visibility sufficient for the lead PSO to 
determine the shutdown zones are clear of marine mammals. DTH and pile 
driving activity may commence following 30 minutes of observation when 
the determination is made.
    (4) If DTH and pile driving activity is delayed or halted due to 
the presence of a marine mammal, the activity may not commence or 
resume until either the animal has voluntarily exited and been visually 
confirmed beyond the shutdown zone or 15 minutes have passed without 
re-detection of the animal.
    (5) Should environmental conditions deteriorate such that marine 
mammals within the entire shutdown zone would not be visible (e.g., 
fog, heavy rain, night), the Coast Guard must delay in-water 
construction activities until observers are confident marine mammals 
within the shutdown zone could be detected.
    (6) Monitoring shall be conducted by trained PSOs, who shall have 
no other assigned tasks during monitoring periods. Trained PSOs shall 
be placed at the best vantage point(s) practicable to monitor for 
marine mammals and implement shutdown or delay procedures when 
applicable through communication with the equipment operator. The Coast 
Guard shall adhere to the PSO qualifications in Sec.  217.195.
    (d) The Coast Guard must use soft start techniques for impact pile 
driving. Soft start for impact drivers requires contractors to provide 
an initial set of three strikes at reduced energy, followed by a 30-
second waiting period, then two subsequent reduced energy three-strike 
sets. Soft start shall be implemented at the start of each day's impact 
pile driving and at any time following cessation of impact pile driving 
for a period of 30 minutes or longer.


Sec.  217.195  Requirements for monitoring and reporting.

    (a) The Coast Guard must submit a Marine Mammal Monitoring Plan to 
NMFS for approval in advance of construction. Marine mammal monitoring 
must be conducted in accordance with the conditions in this section and 
the Marine Mammal Monitoring Plan.
    (b) Monitoring must be conducted by qualified, NMFS-approved PSOs, 
in accordance with the following:
    (1) PSOs must be independent of the activity contractor (i.e. not 
employed by the construction contractor), and have no other assigned 
tasks during monitoring periods.
    (2) At least one PSO must have prior experience performing the 
duties of a PSO during construction activity pursuant to a NMFS-issued 
incidental take authorization.
    (3) Other PSOs may substitute education (degree in biological 
science or related field) or training for prior experience.
    (4) Where a team of three or more PSOs are required, one observer 
shall be designated as lead observer or monitoring coordinator. The 
lead observer must have prior experience performing the duties of a PSO 
during construction activity pursuant to a NMFS-issued incidental take 
authorization.
    (5) The Coast Guard must submit PSO curriculum vitae (CVs) for 
approval by NMFS. PSOs must be approved by NMFS prior to beginning any 
activity subject to this regulation.
    (c) PSOs must record all observations of marine mammals as 
described in the Marine Mammal Monitoring Plan, regardless of distance 
from the pile being driven. PSOs shall document any behavioral 
reactions in concert with distance from piles being driven or removed.
    (d) The Coast Guard shall deploy additional PSOs to monitor 
harassment zones according to the minimum requirements defined in 
Marine Mammal Monitoring Plan, subject to approval by NMFS. These 
observers shall collect sighting data and behavioral responses to pile 
driving for marine mammal species observed in the region of activity 
during the period of activity, and shall communicate with the shutdown 
zone observer(s) as appropriate with regard to the presence of marine 
mammals. All observers shall be trained in identification and reporting 
of marine mammal behaviors.
    (e) Reporting:
    (1) Annual reporting:
    (i) Coast Guard shall submit a draft monitoring report to NMFS 
within 90 work days of the completion of required monitoring for each 
portion of the project as well as a comprehensive summary report at the 
end of the project. Coast Guard shall provide a final report within 30 
days following resolution of comments on the draft report. If no work 
requiring monitoring is conducted within a calendar year, Coast Guard 
shall provide a statement to that effect in lieu of a draft report.
    (ii) These reports shall contain, at minimum, the following:
    (A) Dates and times (begin and end) of all marine mammal 
monitoring;
    (B) Construction activities occurring during each daily observation 
period, including the number and type of piles driven or removed and by 
what method (i.e., impact or vibratory) and the total equipment 
duration for vibratory or DTH for each pile. When possible, the number 
of strikes for each pile/hole (impact driving, DTH); and, for DTH, the 
duration of operation for both impulsive and non-impulsive components 
as well as the strike rate must be included;
    (C) PSO locations during marine mammal monitoring;
    (D) Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance;
    (E) Upon observation of a marine mammal, the following information: 
Name of PSO who sighted the animal(s) and PSO location and activity at 
time of sighting; Time of sighting; Identification of the animal(s) 
(e.g., genus and species, lowest possible taxonomic level, or 
unidentified), PSO confidence in identification, and the composition of 
the group if there is a mix of species; Distance and bearing of each 
marine mammal observed relative to the pile being driven for each 
sighting (if pile driving was occurring at time of sighting); Estimated 
number of animals (min, max, and best estimate); Estimated number of 
animals by cohort (adults, juveniles, neonates, group composition, 
etc.); Animal's closest point of approach and estimated time spent 
within the harassment zone; and Description of any marine mammal 
behavioral observations (e.g., observed behaviors such as feeding or 
traveling), including an assessment of

[[Page 87959]]

behavioral responses thought to have resulted from the activity (e.g., 
no response or changes in behavioral state such as ceasing feeding, 
changing direction, flushing, or breaching);
    (F) Number of marine mammals detected within the harassment zones, 
by species;
    (G) Detailed information about any implementation of any mitigation 
triggered (e.g., shutdowns and delays), a description of specific 
actions that ensued, and resulting changes in behavior of the 
animal(s), if any.
    (2) Coast Guard shall submit a comprehensive summary report to NMFS 
not later than 90 days following the conclusion of marine mammal 
monitoring efforts described in this subpart. All PSO datasheets and/or 
raw sighting data must be submitted with the draft reports.
    (3) All draft and final monitoring reports must be submitted to 
<a href="/cdn-cgi/l/email-protection#4010126e0914106e0d2f2e29342f32292e271225302f323433002e2f21216e272f36"><span class="__cf_email__" data-cfemail="3a6a6814736e6a14775554534e554853545d685f4a55484e497a54555b5b145d554c">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#054c51552b4d6a71666d6e6c6b456b6a64642b626a73"><span class="__cf_email__" data-cfemail="84cdd0d4aaccebf0e7ecefedeac4eaebe5e5aae3ebf2">[email protected]</span></a>.
    (f) Reporting of injured or dead marine mammals:
    (1) In the event that personnel involved in the construction 
activities discover an injured or dead marine mammal, the Coast Guard 
must immediately cease the specified activities and report the incident 
to the Office of Protected Resources (<a href="/cdn-cgi/l/email-protection#ca9a98e4839e9ae487a5a4a3bea5b8a3a4ad98afbaa5b8beb98aa4a5ababe4ada5bc"><span class="__cf_email__" data-cfemail="b5e5e79bfce1e59bf8dadbdcc1dac7dcdbd2e7d0c5dac7c1c6f5dbdad4d49bd2dac3">[email protected]</span></a> 
and <a href="/cdn-cgi/l/email-protection#f1b8a5a1dfb99e8592999a989fb19f9e9090df969e87"><span class="__cf_email__" data-cfemail="6f263b3f4127001b0c070406012f01000e0e41080019">[email protected]</span></a>), NMFS and to Alaska Regional Stranding 
Coordinator as soon as feasible. If the death or injury was likely 
caused by the specified activity, the Coast Guard must immediately 
cease the specified activities until NMFS is able to review the 
circumstances of the incident and determine what, if any, additional 
measures are appropriate to ensure compliance with the terms of the 
regulations under this subpart and LOAs. The Coast Guard must not 
resume their activities until notified by NMFS. The report must include 
the following information:
    (i) Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    (ii) Species identification (if known) or description of the 
animal(s) involved;
    (iii) Condition of the animal(s) (including carcass condition if 
the animal is dead);
    (iv) Observed behaviors of the animal(s), if alive;
    (v) If available, photographs or video footage of the animal(s); 
and
    (vi) General circumstances under which the animal was discovered.
    (2) [Reserved]


Sec.  217.196  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to the regulations 
under this subpart, the Coast Guard must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of the regulations 
under this subpart.
    (c) If an LOA expires prior to the expiration date of the 
regulations under this subpart, the Coast Guard may apply for and 
obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, the Coast Guard 
must apply for and obtain a modification of the LOA as described in 
Sec.  217.197.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under the regulations of this subpart.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within 30 days of a determination.


Sec.  217.197  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.196 for the activity identified in Sec.  217.190(a) shall be 
renewed or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for the regulations under this subpart 
(excluding changes made pursuant to the adaptive management provision 
in paragraph (c)(1) of this section), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under the regulations of this 
subpart were implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis of the change, and 
solicit public comment before issuing the LOA.
    (c) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.196 for the activity identified in Sec.  217.190(a) may be modified 
by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with the Coast Guard regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from the Coast Guard's monitoring from the previous 
year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by the regulations under 
this subpart or subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in LOAs issued pursuant to Sec. Sec.  216.106 
of this chapter and 217.196, an LOA may be modified without prior 
notice or opportunity for public comment. Notice would be published in 
the Federal Register within 30 days of the action.


Sec. Sec.  217.198-217.199  [Reserved]

[FR Doc. 2023-27843 Filed 12-19-23; 8:45 am]
BILLING CODE 3510-22-P


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